← Against the Rules with Michael Lewis
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- [00:00]
Ted Olson
Foreign.
- [00:09]
Malcolm Gladwell
This is Malcolm Gladwell from Revisionist History looking for a ride that turns every drive into an exciting adventure. Picture this. It's a Tuesday morning. You could take the usual route, or you could take the ultimate route. Say goodbye to mundane commutes with thrilling performance, slick design and technology that practically reads your mind. Driving becomes less of a chore and more of an experience. Because why just get from A to B when you can do it with unparalleled style and flair? Unleash the passion for driving. Get behind the wheel of A BMW today. BMW, the ultimate driving machine. Learn more@BMW USA.com the most innovative companies.
- [00:53]
Michael Lewis
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- [01:21]
Narrator
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- [01:52]
Ted Olson
Hey there, Michael Lewis here. I'm dropping into the feed today with some sad news. One of the voices you may have heard if you listen to our third episode this season is no longer with us, the constitutional lawyer Ted olson. He died November 13th in Virginia at the age of 84. Olson argued the case Murphy versus the NCAA that led to the legalization of sports gambling in the United States. But his career as a lawyer has been about so much more than that. For example, he argued the case that allowed same sex couples to get married. He defended the rights of dreamers, people brought to this country undocumented as children. He also argued for a lot of Republican causes, including the case that got George W. Bush declared the winner of the 2000 presidential election, and he later served as US solicitor under Bush. Ted Olson was involved in the Federalist Society, the largely conservative legal movement the that has shaped the Supreme Court for decades to come. He was a complicated and interesting character and one of the most brilliant legal minds of our era, and it was an honor to get to talk with him. I wanted you to hear more of my original conversation with him because we only use little snippets in our episode. Think of this as a kind of small memorial. We'll be back with our regular episodes next week. But meanwhile, here's me with Ted Olson back in June. Do you remember the first case you argued before the Supreme Court?
- [03:21]
I do. It was while I was an assistant attorney general. It was in 1983. It is a practice in the Justice Department for the solicitor General, who controls litigation by the United States and the Supreme Court, to allow any of the assistant attorneys general, there are six or eight of them, to argue one case during their tenure in the Supreme Court. And the solicitor general at the time, his name was Rex Lee, decided that a separation of powers case was appropriate for me. I was very anxious to take on a case in the Supreme Court. And he got a case called Garcia vs. San Antonio Transit, which involved the separation of powers from vertically between powers of the states and power of the federal government, which of course, comes up again in this Murphy case. It was whether the states running their municipal transit systems had to follow federal statutes with respect to wage controls, hours, overtime, and fair labor standards. And the argument that San Antonio was making was that they had the right to set those standards without interference by the federal government. The federal government was saying, oh, no, we have the power to impose those standards on you in your employment, employer capacity.
- [04:50]
So you were representing the federal government?
- [04:52]
Yes, I was an assistant attorney general at the time. So yes, I was representing the federal government in that case.
- [04:58]
How did you feel about that case?
- [05:00]
I wanted to make the case that the federal government had the power to impose these requirements on employers in the commercial context upon states and communities. And so I'm very enthusiastic about arguing it. It turned out that the Supreme Court thought the case was so important that they wanted it. They set it for re argument for the following term and specifically asked a further briefing on the question whether or not the 10th Amendment protected states from that kind of interference by the federal government or not.
- [05:39]
Did you win?
- [05:41]
The federal government won that case.
- [05:44]
So you said you were anxious to argue something before the Supreme Court. Did you mean anxious or eager?
- [05:51]
Eager. I was anxious, too.
- [05:53]
What did it feel like? I'm just curious, like if you could take us back to the first time you're standing up before nine justices and having to make a case.
- [06:01]
Well, it is a thrilling and terrifying experience. The justices, of course, are all very learned in the subjects that you're arguing for them in this case, it was a constitutional question. They were very familiar with it. It was a subject that Justice Rehnquist before he was Chief justice was very interested in, and you don't dare make a mistake, especially if you are representing the federal government. Everything that you say is the standard is the policy of the United States government. That's a very heavy responsibility. So you have to be very, very well prepared. Each of the nine Justices would interrupt and ask questions, interrupt your train of thought, interrupt your answer to the other Justices questions. So it's a very dynamic situation and you have to be very well prepared. I was thrilled to be there and I was very anxious and eager to do it. Right.
- [07:04]
How's it different from just arguing a normal case?
- [07:07]
Well, in normal case, you might be talking to one judge or one justice. This was nine Justices. Each have their own history, each have their own background with respect to constitutional principles or whatever it is that you're arguing. And they are very independent. They're fiercely independent. You can't assume that someone's a liberal or a conservative justice, that they might come out a certain way. You can look at decisions they've made or opinions they've written, concurring opinions or dissenting opinions or majority opinions. You can track their record. And that's what I do whenever I argue a case in the Supreme Court. I go back and I have some of my associates help me with this. Take a look at each justice and the various issues in the case. Frequently there are more than one issue and how would they rule? How would they think about each one of these issues and the interrelationship between those issues and the interrelationship between themselves and the other Justices? A Justice might ask you what appears to be a softball question in the Supreme Court. And you have to be careful answering that kind of a question because you might please the justice who asked that question, but alienate eight others. So it's a very tricky situation.
- [08:26]
Do you feel like from that, between that first time you stood up to argue a case and by the time you're standing up to argue Murphy, that you'd improved?
- [08:37]
Well, I hope I'd improved.
- [08:39]
Like if I was watching the. If I was watching the young Ted Olson versus the middle aged Ted Olson up in front of the Supreme Court, what differences would I notice?
- [08:49]
Well, I'm not sure. I haven't looked back at it that way. I'll tell you this. Every time I argue a case, no matter where it is or what level the Court is, you want to be better than the time before. You learn from your mistakes. We all make them. And you can watch other people make mistakes or do things that are dumb. Or you might walk into something that you hadn't prepared for. That'll tell you you have to be better prepared next time. By the time we argued the Murphy case, I had argued it three or four times in federal district court and two or three times in the United States Court of Appeals for the Third Circuit. So by then, the issues were something that I'd gone over before and we had very, very forceful and strong, capable opponents. Paul Clement, who argued against me, was an absolutely fabulous lawyer. The United States was also in that case arguing against me with someone from the Solicitor General's office. So the case was very, very well presented and the justices knew what the issues were. This issue of the federal government forcing itself on states was an issue that they had heard before, although not very often. So it took a lot of preparation. Whether I was any better, I hope I wouldn't have made as many mistakes as I might have made that first time.
- [10:18]
Can you give me, can you give me an example of a mistake you made in your career that you learned from?
- [10:24]
There are always things that you learn from arguments. We prepare so thoroughly that we try to avoid those kind of mistakes. Now, occasionally there's some of the justices that used to be on the Supreme Court would ask questions completely out of left field that you couldn't possibly anticipate. And I've had questions from the current justices that I thought were not very well conceived. And you have to be dance on your feet. The court is allowing a little bit more time now for oral argument. But for the early part of my career, most of my career, the Supreme Court allowed 30 minutes per side. That's it. And when your time was up, your time was up and you had to cram your argument, answers to the questions, your theme, into that 30 minutes and get it all done.
- [11:16]
We'll be right back with more of my conversation with Ted Olson.
- [11:28]
Malcolm Gladwell
The most innovative companies are going further with T mobile for business. TractorSupply trusts 5G solutions from T Mobile. Together we're connecting over 2,200 stores with 5G business Internet powering AI so team members can match shoppers with the products they need faster. Together with Delta, T Mobile for business is putting 5G into the hands of ground staff so they can better assist on the go travelers with real time information. By leveraging the nation's largest 5G network, Delta aims to improve operations across nearly every part of the journey from check in and boarding to departure arrival, baggage handling and beyond. Tractors supply, Delta and T Mobile for Business are all passionate about connecting people and places. While delivering exceptional customer experiences along the way. These partnerships are paving the way for unprecedented innovation. Learn more about taking your business further by visiting t mobile.com now. This is Malcolm Gladwell from Revisionist History. So we are, we're sitting in.
- [12:39]
Ted Olson
What?
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Malcolm Gladwell
We're sitting in a 1988 BMW 325IS. And describe the way in which it's been modified. Oh, it has no interior.
- [12:49]
Ted Olson
That's where it begins.
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Malcolm Gladwell
Not even a steering wheel. Yeah, right now there's no steering wheel. Although I can fix that in a second. And what's the appeal of a late 80s BMW 325?
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Ted Olson
Well, it's almost like the perfection of.
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Malcolm Gladwell
A recipe that BMW began in the 60s, which is to take, you know.
- [13:08]
Ted Olson
A really beautifully made inline six engine.
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Malcolm Gladwell
Rear wheel drive and just like an incredibly balanced and fun to drive car.
- [13:17]
Ted Olson
Yeah, yeah.
- [13:18]
Malcolm Gladwell
Let me give a little sneak peek. I need to connect the battery.
- [13:27]
Ted Olson
The battery is disconnected.
- [13:28]
Malcolm Gladwell
Wait, David, the battery is in the back of this. The battery is actually under the rear seat. Oh, I see. Just. That's it. That's. So it has an absolutely perfect balance between front and rear way. Exactly.
- [13:38]
Narrator
Yeah, yeah.
- [13:39]
Malcolm Gladwell
So yes. Turn it on. Let's hear it. Oh yes. And this is you. This is your first BMW. My second. Oh, no, Lucas, you can't say that. You have to say, hey, wait, what was your second? What was your first? It was a 1989 535i. Oh yes, this is. But you own that with a bunch of other people.
- [14:06]
Ted Olson
Yeah, yeah.
- [14:06]
Malcolm Gladwell
So this is my first. My true, my first, you know, sole BMW, solely owned, solely on VI. Okay, wonderful. Whether it's a vintage 3 Series or the all new 20253 Series, you'll never forget your first BMW. The new 3 Series combines mind blowing driving dynamics with modern style, offering a striking sports sedan that thrills on every ride. With innovative technology, intelligent driver assistance systems and bold design inside and out, the 3 Series makes every journey unforgettable. Learn more at BMW USA.com this message is a paid partnership with Apple Card. When I'm reporting a season of revisionist history, I'll admit I rack up a lot of expenses. There's archival fees, travel expenses, meals, research materials, books, my very own Pushkin plus subscription so I can hear the episodes early on Apple podcasts. Of course, it all adds up. And that's where my no annual fee Apple Card comes into play. Now every time I pull out my iPhone, double click and tap to Pay, I'm getting 3% cash back on all purchases at Apple and 2% on everything else. When I use Apple Pay, I love my Apple card because it makes the expenses of producing revisionist history go down easy. Plus there's no fees, all the privacy and security expect from Apple and everything is done right on my phone. If you have an iPhone, you can apply for an Apple card right this moment in the Wallet app. It's that easy. Just promise to come back and listen to the rest of the episode. Subject to credit approval. Variable APRs for Apple Card range from 19.24% to 29.49% based on credit worthiness rates as of August 1, 2024. Apple Card issued by Goldman Sachs Bank USA Salt Lake City Branch terms and more applecard.com.
- [16:10]
Ted Olson
I'm back with Ted Olson. So I've never been inside the Supreme Court. If you could just paint a picture for me. The first time you stand up, what does it look like?
- [16:21]
You're standing at a podium looking at the Supreme Court. They are arrayed, all nine of them, in something close to an arc so that the justices and they're arranged in order of seniority. The Chief justice is in the middle, his the senior most colleague on the court is to his right, the next on his left, and on down to the most junior Justices. Now, it's enough of a curve that if you're looking at one of the justices at one end of the court, one end physically of the Court, you might not have in your eye attention the other justices. So it helps if you've done it often enough that you recognize voices. So they are very, very close. The Chief justice is probably 6, 7, 8ft from the podium where you're standing. You stand still, you don't move about, and you stand up straight and address the court as much as you can. The press is arrayed to your left with some seats that are set aside for the press that are perpendicular to where you're standing and perpendicular to the bench. Behind you are members of the United States Supreme Court bar, probably a couple hundred, and then behind them are members of the general public. And over to your right are a group of benches reserved for relatives and friends of the justices, and behind them some of the clerks. It is not a big space. Not very many people can get in there. The acoustics are very, very good so that you can hear your voice. And my voice, fortunately, carries quite well. Some of the justices speak more softly. Justice Ginsburg was well known to speak in a very soft voice and punctuate her speech with pauses, so sometimes it was hard to hear what she was asking, and sometimes it was difficult to know when she was done with the point. And you didn't want to interrupt while she was still about to finish a sentence or a question. So it's not easy, but it is something that you have to learn and practice and become familiar with the justices, what their style is. Right now, the Chief Justice Roberts is allowing more time for argument. So some of these arguments have gone on for a couple of hours.
- [18:56]
I'm curious, like, what's your intellectual history with states rights? To what do you date your interest in the subject of what the federal government should and can do and what the states should be allowed to?
- [19:10]
Well, that's a difficult question because it depends upon the context. It would be for me, it would be something that what's the case? What's the issue? What are the merits and what kind of constitutional questions does it raise? We have a system of government, as you know, that's quite different than systems of government in other countries. We have dual, in a sense, jurisdictions. We have separation of powers at the federal level, and we have federalism. States are the Constitution says we the people. The Congress and the Constitution allows states to regulate people. It doesn't allow it allows Congress to regulate people, doesn't allow Congress to regulate states. So there's a delicate balance between what should be done and can be done at the local level, what the Constitution allocates to Congress to be able to do and where there's space in between.
- [20:11]
So let's talk about the Murphy case. How do you decide whether to take on a case? Are you looking for whether this has constitutional implications right from the start?
- [20:23]
Well, a lot of it comes to us. We're sitting here waiting for clients to come to us and bring us difficult problems. I was contacted by one of my partners who was very close to Governor Christie. He wanted to reinvigorate Atlantic City by allowing Atlantic City to take the kind of gambling, gaming opportunities that Nevada was doing regularly and day in and day out. Atlantic City was not thriving, it was suffering. And he felt that if we could just have sports betting in there, we would help the economy of New Jersey. And that was his goal. So he felt, is there a way to challenge the constitutionality of that statute? And if there is, what do you think of our chances of prevailing? So this was just the kind of case that I have always loved, a great challenge. It's very rare that you have an opportunity to challenge the constitutionality of an act of Congress and seek a court to overturn an act of Congress on constitutional Grounds. This was one where there was not much precedent. If you've read the briefs, you probably noticed that we were opposed by the United States, the National Football League, organized baseball, the national basketball association, the NC2A. Just about everyone. We had opposition from, from the very beginning. So this was a major legal challenge calling on perseverance and creativity to figure out the arguments that could be made to ask Congress to overturn, I mean, ask the Supreme Court to overturn an act that had been very, very popular when it passed. And most people felt that it was the right thing that states not engage in sports betting. So we had lots of challenges.
- [22:21]
Did you have any feeling about sports betting at the time?
- [22:25]
I didn't have a strong feeling one way or the other. During the course of the litigation, we knew and we learned that sports betting was taking place all over the country. It was legal in the state of Nevada, but all over the country people were betting on sports, their local teams, all kinds of betting was taking place. It was a multi billion dollar industry, but it was all unlawful. It was all underground. It wasn't regulated because it was illegal and people could be cheated and all kinds of unsavory activities could take place because it was taking place. So what we were asking, and we wanted to phrase it this way to the court and to the courts, is this is something that is, aside from the legal issues now, this is something that is happening. If it can be legalized, it can be regulated, you can put accountants in, you can require the operators to be transparent and to be subject to rules and regulations and of course to reasonable amount of taxation. So from a policy standpoint, we felt we could make the argument that this would be a good thing.
- [23:42]
So Chris Christie comes to you and this case interests you. How do you decide how to argue it? And like, if you could just kind of take me inside your process.
- [23:51]
Well, I wanted to look for all the issues and arguments that we could make. One of them that occurred to us, that we pushed, but not too hard because it wasn't gonna. It didn't get us anywhere. Is that how come New Jersey is being treated differently than Nevada? How come New Jersey is a sovereign state? Nevada is a sovereign state. Why does the federal statute give precedence to Nevada for conducting an activity? What if the federal government said that states can have banks or states can have grocery stores and one state can have them and one state can't? So we made an argument that was sort of an equal protection issue from the standpoint of states. We also made an argument that the legislation Was not clear and was ambiguous. We were looking for anything like that that we could find. But the one that appealed to me is that the federal government in this case had the power to regulate gambling. It could regulate gambling under the interstate commerce clause if it was commerce, and it certainly was. But the Congress did not choose to do it that way. It said states may not authorize or permit gambling on sports. So in other words, what Congress was doing was we want to prohibit this activity, but we want the states to do it. States will take the responsibility and the blame and the credit or the blame for doing it, because the federal government stepped aside just demanding that the states do it. And the states will spend their money to pass a statute and enforce a statute. The response to that is, what's wrong with that? Is the federal government going to do something? It should take responsibility for it. It should pay for the enforcement. It should have to answer to its citizens for what it has done. It shouldn't say, we've got nothing to do with that. You have to go to the people in New Jersey and the legislature of New Jersey to do something about it. And that seemed to me wrong to violate this principle that the federal government cannot coerce states to do something that the federal government can do itself.
- [26:15]
It seemed to you obviously unconstitutional.
- [26:18]
Well, it seemed to me that we had a strong constitutional argument, but that we thought that it was going to be very difficult because only two cases in recent history in the supreme Court that had articulated this anti commandeering doctrine, that's the way it's been referred to, that the federal government can't command or draft or coerce the states into doing what it should do. There were only two supreme court cases that had articulated that principle in recent years. And our opponents and everybody else said, well, they're never going to buy that. That's just too remote. It's too attenuated a constitutional argument. You're never going to succeed. But that's how we had to succeed. And we lost three times in the district court and at least twice in the third circuit. So we had a fight all the way. And I think until we finally won, no one thought, well, not no one, but people, the smart people did not think we were going to win.
- [27:30]
If I were to ask you to handicap the case when you took it, what kind of odds would you have given yourself of succeeding?
- [27:36]
Oh, you wanted me to bet on my own case?
- [27:38]
Yes.
- [27:40]
Actually, what I should have done, Michael, is asked for a percentage of the amount bet as a result of our case. If we won I should have developed some kind of contingent fee.
- [27:53]
You can't see everything coming.
- [27:55]
I would have said, I think we have a good chance of getting there. We have a solid principle. I probably wouldn't have put a number on it, but we have a solid principle. But it's going to be very difficult. I've had several cases in my career where we've convinced the Supreme Court to overturn an act of Congress. That is very rare. It's very difficult. And I would tell the client it's a long shot and the odds are strenuously against us. But you are right on principle and we ought to keep pursuing it. Now, Governor Christie, to his great credit, after we lost and then we lost and then we lost and so forth, and it was costing resources and political capital to do this, but he stuck with us. I kept thinking we could get to the Supreme Court, we could win. And of course we did at the end of the day. But it took a lot of persistence and faith by Governor Christie and members of the New Jersey legislature that stuck with us.
- [29:05]
We're going to take a quick break.
- [29:18]
Michael Lewis
The most innovative companies are going further with T Mobile for Business. Tractor Supply trusts 5G solutions from T Mobile. Together they're connecting over 2,200 stores with 5G business Internet powering AI so team members can match shoppers with the products they need faster. Together with Delta, T Mobile for business is putting 5G into the hands of ground staff so they can better assist on the go travelers with real time information. By leveraging the nation's largest 5G network, Delta aims to improve operations across nearly every part of the journey, from check in and boarding to departure arrival, baggage handling and beyond. Tractor Supply, Delta and T Mobile for Business are all passionate about connecting people and places while delivering exceptional customer experiences along the way. These partnerships are paving the way for unprecedented innovation. Learn more about taking your business further by visiting tmobile.com now.
- [30:21]
Malcolm Gladwell
Hello. Hello there. This is Malcolm Gladwell from Revisionist History. Ready? Let's go. We're getting in the special car. This is the special car. Look, see the blue car?
- [30:37]
Ted Olson
Whoa.
- [30:40]
Malcolm Gladwell
So here we are. We're driving down a lovely winding country road in the Hudson Valley. I am here with my daughter Speedy, and we are sampling one of the latest and greatest of BMW's creations. Makes 335 horsepower, range of over 300 miles. Riding in the BMW i4 e40. You know how your toys have batteries? This car has a battery. How do you like this car so far?
- [31:12]
Ted Olson
Does it go fast?
- [31:14]
Malcolm Gladwell
Oh, it goes so fast.
- [31:15]
Ted Olson
Let's go.
- [31:16]
Malcolm Gladwell
Are you ready?
- [31:17]
Ted Olson
Yeah.
- [31:18]
Malcolm Gladwell
Are you sure?
- [31:19]
Ted Olson
Yeah. Whoa.
- [31:25]
Malcolm Gladwell
Spadey was that fast again? Oh, yeah. Okay. In a world full of ordinary, there's a brand that dares to be different. Feel the rush of precision engineering as power meets sophistication with every turn. It's not just a drive, it's an experience. So buckle up and embrace the extraordinary. Because when the road calls, only one answer will do. BMW, the ultimate driving machine. Shall we see what happens if we push the accelerator all the way to the floor? Are you ready? Yeah. Are you sure?
- [32:02]
Ted Olson
Yeah.
- [32:03]
Malcolm Gladwell
One, two, three. Three.
- [32:06]
Ted Olson
Whoa. Elevator. Guys. It's the elevator.
- [32:15]
Malcolm Gladwell
Going up, up a hill in this BMW is just like an elevator. That's exactly right. You know what this car is? This is your first BMW. Learn more at BMW USA.com.
- [32:32]
Narrator
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- [33:44]
Ted Olson
I'm back with constitutional lawyer Ted Olson talking about his long battle on behalf of the state of New Jersey.
- [33:51]
Every time you're representing a government, it's a little bit different than representing a private party like a company like Microsoft or Apple or something like that. A government has budget issues. It has people criticizing the way money is spent. It has limited amounts of money. The governor has to explain why he's spending state resources to handle an argument that many people think cannot be successful.
- [34:20]
By the time you come to challenge this law, it's 20 years old. How unusual is it for a law to sit there for that long before it's challenged and actually is then overturned?
- [34:38]
Well, it's very unusual. In the first place, this law was passed something like unanimously. I can't remember the numbers, but it was very, very popular when passed. The desire to pass this statute was perceived as doing good to stop people from betting on sports, stop the potential corruption of athletes and the temptations that might be put before them through money. Everybody remembers the Black Sox. You probably know that better than anybody. And so that's the specter. And it did sit around for 20 years. One of the things that our opponents did say, well, that's been around for 20 years. Nobody challenged it. Why is the Supreme Court going to get involved in that now? So you have the impetus or the inertia of challenging something that has sat there. It's very popular. No one's challenged it before. We're making an argument that no one has made against this particular federal statute. So, yes, it's a very significant uphill climb, and it's very rare that it could be done and done successfully.
- [35:51]
How did you prepare for the argument in 2018?
- [35:56]
I prepare pretty much the same way the way everybody should prepare. I read the briefs carefully. I read the cases underlying the briefs. I look at the tradition and history of the constitutional provisions that might be invol. I look at particular way that these issues have been approached by the Justices. I ask my colleagues to prepare an analysis of each of the justices with respect to these particular issues. I participate in moot courts where we assemble five or six or more very, very astute constitutional lawyers, sometimes in my firm, sometimes outside my firm, to ask questions for about an hour and a half, put me on the spot so that I can anticipate what the justices might ask and make my answers more crisp and avoid traps that you might not think of if you don't expose yourself to that kind of competitive arena. So I try to do all those things. I try to write my own questions out. I try to synthesize the case in a sentence or two. I believe that if you can't explain it to a sophomore in high school in a sentence or two, then you've got to go back to work. You've got to make it very simple and straightforward, and you have to make your principle appealing. And that's why I tell people, think of the prism through which you want the justices to perceive this case. And so you can keep going back to that root principle when you get asked questions, do this for me.
- [37:42]
Sum up in a couple of sentences, your opponent's argument and your argument.
- [37:47]
Well, our opponent's argument, I'll do that. First is that sports betting is bad. It tends to corrupt the youth. It tends to put at risk the integrity of organized sports. And it shouldn't be done. And Nevada was allowed to do that because of historical reasons it had already started. The argument that I would have made is that yes, Congress can do that. Congress can take the responsibility of prohibiting or regulating betting on sports if it wants to. It certainly can. But it can't tell the state of California or the state of New Jersey, you do it, you take responsibility for it, you pay for enforcement, you supervise it. You do what we could do so that we can stand back and say, well, it's not up to us. So that the principle is that states have the power not to be regulated as states by the federal government. Now, I could probably, and I would hope to be able to make that a little bit simpler.
- [38:50]
That's all right. Did you, when you first saw the law as it was written, did it strike you as odd that instead of just banning sports gambling, it banned states from changing their sports gambling laws?
- [39:03]
It is an unusual statute because it doesn't do what Congress could do. It makes the states do it. And I did see this right away, that while that's unusual, Congress can regulate marijuana, it can regulate trucking industries, that can do all those things, but it can't tell the states you do it. I hate to be cynical, but Congress loves to do this sort of thing. It loves to take positions that everybody will applaud it for taking, but then not have any responsibility for doing it. They could be against sports betting, but then when someone said, we want to bet on sports, don't come to us. Go to the, the legislature in Connecticut or whatever. They're the ones that are prohibited it. So it is. Congress loves to do this sort of thing. And if you follow them, they do it all the time. They pass statutes with gaping holes of discretion, Then expect administrative agencies to do it. And when the agency does it in a way that they don't like, then they scream and holler and say, see those out of control bureaucrats, blah, blah, blah. But the motivating factor of members of Congress is to get reelected. So if they can take a popular position and yet not have responsibility for it, they'll do it every time.
- [40:27]
Were you surprised by what's happened since you won? Were you surprised by the explosion in sports gambling?
- [40:35]
I'm not. I think that in some respects it's good. In some respects it may not be. There's an awful lot of it taking place. I am a little surprised that you can now bet on particular plays during the course of a game. I was at the super bowl, somebody's home during the Super Bowl a year or so ago, and one of my neighbors was there and had this little computer in his hand or his cell phone. And he said, I just bet that somewhere during sometime during this game, someone will attempt to hit a field goal and it will hit the goal posts. And I said, jesus Christ, who would bet on something like that? And then about five minutes later, it happened. I never would have thought that you would be able to bet on that degree of granular nature of the contest. But it has happened and people are very, very creative and people love the contest. They love to. While so and so will have six free throws or make only four of them. You know, anything that people can bet on, they will.
- [41:45]
When that person bet on a field goal hitting the goal post, did you turn to him and say, do you know why you can do this?
- [41:51]
No. He knew. He knew. He knew it was. He knew I had been involved in this case. My neighbors know.
- [42:01]
So we're going to let you go. But before we let you go, how many cases have you argued in front of the Supreme Court?
- [42:07]
65.
- [42:08]
Where does that put you in the all time ranking?
- [42:12]
Well, it depends. The Supreme Court used to take 150 cases a year in the 80s and more than that in a couple generations before that. So there are a lot more opportunities. Secondly, I was Solicitor General for three and a half years, and so you get to argue. I was arguing about 6, 7, 8 cases a year as Solicitor General. There are some people in the Solicitor General's office that have been there for 40 years, and they have a lot of more cases that they've argued than me. And there's a couple of lawyers in private practice that have argued more cases than that, but they also spent a lot of time in the Solicitor General's office to get to those numbers.
- [42:57]
I really appreciate your time and I hope one day I get to meet you in person.
- [43:01]
Oh, well, I look forward to that. Absolutely.
- [43:07]
Now, as it happened, I did get to meet Ted Olson in person. Just a few weeks after this conversation. He took me to dinner in Washington D.C. and he was a delight in person. I totally enjoyed his company. I thought I'd made a new friend. It's sad to lose him. Whether or not you agree with his arguments, it's clear his legacy will outlive him for sure, if only because every time you place a bet on a game, there's a little piece of Ted Olson in there. Thanks again for listening to this special bonus episode. We'll be back to our regular episodes next week. Against the Rules is written and hosted by me, Michael Lewis, and produced by Lydia Jean Cott, Kathryn Girardeau and Ariella Markowitz. Our editor is Julia Barton, our engineer is Sarah Bruguer. Against the Rules is a production of Pushkin Industries. To find more Pushkin Podcasts, listen on the iHeartRadio app, Apple Podcasts, or wherever you listen to podcasts. And if you'd like to listen, ad free and learn about other exclusive offerings, don't forget to sign up for a Pushkin plus subscription at Pushkin FM plus or on our Apple show page.
- [44:30]
Narrator
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- [45:33]
Ted Olson
Welcome to TGL, presented by SoFi, golf's newest league. It's sharp and it's electric. How is it sharp? How is it electric? Good questions. Try this on for size. Two hours of Hammer dropping overtime forcing playoffs on the line Golf with 24 of the best players from the PGA Tour split into six teams Atlanta, Boston, Jupiter, L.A. new York and the Bay. This isn't your average Sunday pickup game. Catch the inaugural TGL match January 7th. Only on ESPN. Keep up. It's gone.